INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
PRACTICE NOTE NO. 20
Criminal
Prosecutions - Streaming, Standard Timetable and Directions
Pursuant to Section
185A of the Industrial Relations Act 1996
1. The purpose of
this Practice Note is to facilitate the effective case management of
prosecutions brought before the Industrial Court (the Court) by prescribing
standard directions and timetables for such matters and to ensure that such
matters are dealt with in an orderly and expeditious manner and in accordance
with the Court's published Time Standards.
2. This Practice
Note shall come into force on 1 February 2010.
Streamed Proceedings
3. Prosecutions
brought before the Court will enter one of two case management streams
designed to ensure that the variety of offences brought before the Court are
dealt with appropriately in accordance with the nature of the particular
offence.
4. Upon the filing
of an Application for an Order pursuant to section 246 of the Criminal
Procedure Act 1986 the Prosecutor shall nominate which prosecution stream
is the most suitable for determining the matter. Normally, offences involving the death or serious injury of a
person or the risk of death or serious injury to a person under the Occupational
Health and Safety Act 2000 should be nominated as Stream 1 offences; other
prosecutions should be nominated as Stream 2 offences.
Stream One Procedure
5. Upon an Order
being made by the Registrar or the Court, the Prosecution shall forthwith serve
on the Defendant the following documentation:
(i) a Certified or
Sealed Copy of the Order, a copy of the Application for an Order together with
any supporting Affidavits
(ii) a blank Notice
of Appearance (in the form annexed to this Practice Note)
(iii) a copy of this
Practice Note
(iv) an explanatory
document advising the defendant of its obligations to file and serve a Notice
of Appearance and the consequences of its failure to appear at the First
Directions Hearing or otherwise in the proceedings.
(v) an explanatory
document advising the Defendant of the criminal case conferencing process in
the Court.
6. The Defendant,
or the Defendant's legal representative, is to file with the Industrial
Registrar and serve on the Prosecution a Notice of Appearance within seven days
of service of the Certified Copy of the Order and associated documentation.
Service of brief of evidence and Prosecutor's Statement
of Facts
7. (i) Where
a Notice of Appearance has been filed and served on the Prosecution by the
Defendant's legal representative, the Prosecution brief of evidence and
Prosecutor's Statement of Facts are to be served on the Defendant's legal
representative within 14 days of service of the Notice of Appearance.
(ii) Service in
accordance with sub-paragraph (i) may be effected by leaving it at the relevant
legal practitioner's address for service or by sending it to that address by
post, document exchange or, to the extent that the documents in the brief make
it appropriate to do so, by facsimile or by sending it to the legal practitioner's
email address for service by electronic communication.
(iii) If, by the
First Directions Hearing, no Notice of Appearance has been filed and served on
the Prosecution or a Notice of Appearance has been filed and served but
discloses no legal representative, the Prosecution brief of evidence and
Prosecutor's Statement of Facts are to be served on the Defendant no later than
seven days after the date of the First Directions Hearing. The Defendant shall provide an address for
service of the brief and associated documents at the First Directions Hearing.
First Directions Hearing
8. (i) A
matter is to be listed for its First Directions Hearing within four weeks
of the issue of an Order by the Registrar or the Court.
(ii) At the First
Directions Hearing
(a) If the Defendant
enters a plea of guilty - the matter will be listed for sentence hearing.
(b) If the Defendant
enters a plea of not guilty - the matter will be listed for defended hearing.
(c) If the Defendant
enters no plea and is legally represented, the Court's criminal case
conferencing procedure is applied. Note: Criminal Case Conferencing only
applies where a Defendant is legally represented and does not apply to
prosecutions commenced pursuant to section 32A of the Occupational Health
and Safety Act 2000.]
(d) If the Defendant
is not represented and enters no plea - the matter will be adjourned for four
weeks and the next listing will be treated as a first directions hearing.
(e) where the
parties have identified that the nature or complexity of the matter is such
that the application of the normal case management procedures will not meet the
contingencies of the matter, the parties are to draw this to the attention of
the Registrar or the Court. The parties
are to provide full details of the particular nature or complexity of the
matter including estimated length of hearing if the matter was to proceed as a
not guilty plea. In appropriate
circumstances the matter will be allocated for direct judicial case management
and these standard directions may be varied by the judge as seen fit.
Case Conference Procedure
9. Criminal case
conferencing applies only where a defendant is legally represented.
10. Where the
proceedings are referred for criminal case conferencing, the following directions
are to be issued:
i. A criminal
case conference is to be set to take place within 6 weeks;
ii. At or before
the criminal case conference, the Defendant is to put in writing to the
Prosecution, any representations, requests or proposals relating to the
charges, particulars, Prosecutor’s Statement of Facts or other issue related to
the proceedings;
iii. The
Prosecution to respond to any written representations or written request of the
Defendant at or within 4 weeks after the criminal case conference;
iv. Second
Directions Hearing set 6 weeks after the criminal case conference is held;
v. Any
interlocutory or other application relating to the proceedings is to be made by
Notice of Motion and Affidavit and must be filed and served 7 days before the
Second Directions Hearing. Motions will
be returnable at the Second Directions Hearing.
11. Criminal case
conferences are to be held at a venue suitable to the parties. In the Sydney metropolitan area the Court
will, on application of the parties, seek to provide a conference room or the
like for the purpose of a case conference being conducted.
12. The criminal
case conference provides the Defendant with the opportunity to:
a. indicate the
plea to be entered;
b. make
representations or requests in relation to the charge, particulars of the
charge or Prosecutor’s Statement of Facts.
c. provide details
of any interlocutory or other matter to be raised in the proceedings.
Case conferences are to be conducted on a "without
prejudice" basis, that is, no evidence may be adduced during the
proceedings of
(i) any
communication made during the course, or for the purposes of, a criminal case
conference
(ii) any document
prepared in connection with a criminal case conference.
13. The parties have
liberty to apply during the criminal case conferencing process.
Second Directions Hearing
14. At Second
Directions Hearing:
a. If Defendant
enters a plea of guilty - the matter will be listed for sentence hearing.
b. If plea of not
guilty - the matter will be listed for defended hearing.
c. If any
interlocutory or other application has been filed - will be listed for hearing
as soon as practicable.
d. Where no plea
is entered and the Defendant or their legal representative satisfies the
Registrar or the Court that the interests of justice dictate a further
adjournment - the matter will be listed for a Third Directions Hearing before a
Judge within four weeks.
15. At the Second
Directions Hearing where a plea is entered the parties should be prepared to provide
estimates for the length of any hearing (either interlocutory, sentence or
defended) and any special requirements or directions required for such hearing
(e.g. service of expert reports, requirement for interpreter).
16. To facilitate
the requirement of Clause 15 where the Defendant is legally represented, the
Defendant's legal representative is to complete and sign a copy of the Court
Listing Advice in the form as annexed to this Practice Note.
Third Directions Hearing
17. a. At
the third Directions Hearing, subject to any order made by the Judge to whom
the matter is allocated on an application by the defendant, in the absence of a
plea being entered, the matter will be referred for allocation for hearing on
the basis of a not guilty plea.
b. No further
adjournments will be allowed except in the most exceptional circumstances and
where the interests of justice dictate.
Any such application should be made by notice of motion supported by
evidence on affidavit.
Plea of Guilty entered
18. (i) Once
the Court has allocated a hearing date for the plea of guilty, subject to the
hearing date set and subject to sub-paragraph (iii) below the following
timetable applies:
(a) any further
evidence to be relied upon by the Prosecution together with a Statement of
Facts (agreed if possible) is to be filed and served by the Prosecution no
later than six weeks before the date appointed for the hearing of the plea.
(b) evidence to be
relied upon by the Defendant is to be filed and served no later than three weeks
before the date appointed for hearing of the plea.
(c) evidence in
reply by the Prosecution is to be filed and served no later than one week
before the date appointed for hearing of the plea.
(ii) The above
standard directions have been prepared on the basis that specific arrangements
or directions have been earlier made in respect of the service of expert
evidence between the parties in preparation for the hearing of the plea. In the event that such directions have not
been made either the Court or Registrar as appropriate, should be requested by
the parties to modify the standard directions to ensure that expert evidence is
served in a way that allows each party to obtain instructions on such evidence
and, if appropriate, reply to such evidence before the allocated hearing date.
(iii) Where a party
objects to the Judge hearing the plea reading any particular document or class
of documents prior to the hearing the Registrar shall be advised in writing of
the objection with a copy of the subject letter being sent to the Judge's
Associate and the document(s) shall either be returned to the relevant party or
placed in the Court file in a sealed envelope.
Stream Two Procedure.
19. Upon an Order
being made by the Registrar or the Court, the Prosecution shall forthwith serve
on the Defendant the following documentation:
(i) a Certified
Copy of the Order, a copy of the Application for an Order together with any
supporting Affidavits.
(ii) a blank Notice
of Appearance (in the form annexed to this Practice Note).
(iii) a copy of this
Practice Note.
(iv) an explanatory
document advising the Defendant of its obligations to file and serve a Notice
of Appearance and the consequences of its failure to appear at the First
Directions Hearing or otherwise in the proceedings.
First Appearance Date
20. A matter is to
be listed for a First Appearance Date within 4 weeks of the issue of an
Order by the Registrar or the Court.
21. On the first
appearance date a brief order must be made by the Registrar or the Court unless
a plea of guilty is entered or the Defendant fails to appear.
22. Where the
Prosecution brief has been served prior to or on the first appearance date the
matter will be adjourned for not more than six weeks for reply.
23. Where the
Prosecution brief has not been served the matter will be adjourned for not
more than eight weeks (allowing not more than 14 days for service of the
brief and not more than six weeks for reply).
24. The date to
which a matter is adjourned will be known as the Reply Date.
25. A Court
Listing Advice in the form annexed to this Practice Note listing the
statements contained within the brief is to be served by the Prosecution with
the brief.
26. The period
allowed by the Registrar or the Court for reply is to be utilised by the
Defendant and/or legal representatives to consider the evidence and the
Prosecution witnesses required for cross-examination.
27. All requests for
particulars or representations for withdrawal by the Defendant must be
served on the Prosecution no later than 14 days prior to the reply
date. Failure to comply with this
requirement will not entitle the Defendant to an adjournment on the
return date.
28. Parties are at
liberty to restore the matter to the list prior to the Reply Date for a plea of
guilty to be entered.
Service of the Prosecution Brief
29. Where a Notice
of Appearance has been filed and served on the Prosecution by the Defendant's
legal representative, the Prosecution brief of evidence is to be served on the
Defendant's legal representative in accordance with the instructions for
service on the Notice of Appearance filed with the Court within fourteen days.
30. Where a
Defendant is not represented, the Prosecution's brief of evidence is to be
served on the Defendant by
a. handing it to the
Defendant, or
b. by sending it
by post or by facsimile to the Defendant's residential address, or
c. sending it by
electronic communication to the Defendant's email address.
Reply Date
31. On the Reply
Date the Defendant must enter a plea (where not previously entered).
32. In the event
that a plea of not guilty is entered and the Defendant is legally represented,
the legal representative of the Defendant is to hand to the Court and to the
Prosecutor a completed Court Listing Advice form (refer clause 25).
33. On the Reply
Date the Registrar or the Court must
a. proceed to
allocate a date for hearing of the plea or hear the plea.
b. where a plea of
not guilty is adhered to or entered, allocate a date for hearing.
c. where no plea
is entered and the Defendant or their legal representative satisfies the
Registrar or the Court that the interests of justice dictate a further
adjournment - the matter will be listed for a further Reply Date before a Judge
within four weeks.
34. At any second
Reply Date
a. subject to any
order made by the Judge to whom the matter is allocated on an application by
the defendant, in the absence of a plea being entered, the matter will be
referred for allocation for hearing on the basis of a not guilty plea.
b. No further
adjournments will be allowed except in the most exceptional circumstances and
where the interests of justice dictate.
Any such application should be made by notice of motion supported by
evidence on affidavit.
35. Where the
Defendant fails to appear on the Reply Date the Court may proceed to hear and
determine the matter in the absence of the Defendant or the Registrar is to
allocate a date for hearing in the absence of the Defendant.
Hearing
36. The following
applies only where the Defendant is legally represented
a. the Prosecution
is required only to call at the hearing those witnesses nominated for cross
examination on the Court Listing Advice form.
A notation on the Court Listing Advice form by the legal representative
of the defendant that a witness is not required to be called for cross
examination does not prevent the Prosecution calling that witness in the
prosecution case if the prosecutor is of the opinion the witness is
required. In these circumstances the
Prosecutor should notify the legal representative of the Defendant no later
than 7 days prior to the date of the hearing that it will be called the said
witness.
b. The remainder
of the brief of evidence may be tendered by the Prosecutor.
c. the legal
representative of the Defendant is to notify the Prosecutor of any changes in
the witnesses nominated for cross-examination no later than 14 days
prior to the date of hearing.
d. nothing in this
Practice Note operates to make a written statement or any part of a written
statement admissible if it is not otherwise admissible.
General
Reckoning of Time
37. The provisions
of Part 1.11 of the Uniform Civil Procedure Rules 2005 apply to criminal
proceedings.
Affidavits
38. Subject to any
provision of the Criminal Procedure Act 1986, the Industrial
Relations Act 1996 or the Act under which the proceedings are brought the
following provisions apply in respect of affidavits filed in criminal
proceedings:
38.1 Time for
swearing
An affidavit for use in any proceedings may be sworn
before or after the commencement of the proceedings.
38.2 Form
(1) An affidavit
must be made in the first person.
(2) The body of an
affidavit must be divided into paragraphs numbered consecutively, each
paragraph being as far as possible confined to a distinct portion of the
subject.
(3) Where it appears
to the person before whom an affidavit is sworn that the deponent is illiterate
or blind, the person must certify in or below the jurat that:
(a) the affidavit
was read in the person’s presence to the deponent, and
(b) the deponent
seemed to understand the affidavit.
(4) Where an
affidavit is made by an illiterate or blind deponent and a certificate in
accordance with subrule (3) does not appear on the affidavit, the affidavit may
not be used unless the tribunal is satisfied that the affidavit was read to the
deponent and that the deponent seemed to understand it.
38.3 Alterations
(1) Where there is
any interlineation, erasure or other alteration in the jurat or body of an
affidavit, the affidavit may not be used without the leave of the tribunal
unless the person before whom the affidavit is sworn initials the alteration
and, in the case of an erasure, re-writes in the margin of the affidavit any
word or figures written on the erasure and signs or initials them.
(2) Subrule (1)
applies to an account verified by affidavit as if the account were part of the
affidavit.
38.4 Annexures and
exhibits
(1) A document to be
used in conjunction with an affidavit must, where convenient, be annexed to the
affidavit.
(2) Where annexure
is inconvenient, the document may be made an exhibit to the affidavit.
(3) An exhibit to an
affidavit must be identified by a certificate entitled in the same manner as
the affidavit and made by the person before whom the affidavit is sworn.
38.5 Irregularity
An affidavit may, with the leave of the tribunal, be
used notwithstanding any irregularity in its form.
38.6 Handing up
affidavits
(1) An affidavit,
unless required by or under an Act or by an order of a tribunal, may be filed
in the Registry or may be handed up in the course of proceedings.
(2) An affidavit
which has been served must, before it is filed or handed up, bear a note by the
person who served the same, indicating the time, place and manner of service,
unless the tribunal otherwise directs.
38.7 Service
A party intending to use an affidavit must serve it on
each other interested party not later than a reasonable time before the
occasion for using it arises.
38.8 Scandal etc
Where there is scandalous, irrelevant or otherwise
oppressive matter in an affidavit, a tribunal may order that:
(a) the matter be
struck out, or
(b) the affidavit be
taken off the file.
38.9 Cross-examination
(1) A party may
require the attendance for cross-examination of a person making an affidavit.
(2) A requirement
under subrule (1) must be made to the party serving or proposing to use the
affidavit.
(3) Where the
attendance of a person is required under subrule (1), the affidavit may not be
used unless the person attends or is dead or the tribunal grants leave to use
it.
(4) Where a person
making an affidavit is cross-examined, the party using the affidavit may
re-examine the person.
Motions
39. The provisions
of Part 18 of the Uniform Civil Procedure Rules 2005 apply to motions
filed in criminal proceedings.
Summonses
40. The provisions
of Part 33 of the Uniform Civil Procedure Rules 2005 apply to
·
summons to give evidence under s 165(3)(b) of the Act
and
·
summons for production under s 165(3)(c)
filed in criminal proceedings
Boland J, President
1 February 2010
____________________
Printed by
the authority of the Industrial Registrar.
Form
37
Notice of Appearance
BEFORE THE INDUSTRIAL RELATIONS COMMISSION
OF NEW SOUTH WALES
No.IRC of 2009
(Add
Title as required by Schedule 1)
NOTICE
OF APPEARANCE
Filed by (Name
of person, corporation, organisation or other body filing the document)
Contact name (Name
of person conducting the matter)
Address
Telephone
Facsimile
DX
Email
(and if solicitors or agents are
acting, add)
by their agents
Name
Address
Telephone
Facsimile
DX
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1. Name
2. Of
(address and occupation)
Appears
(where
it applies add and "submits to the orders of the Commission, save as
to costs").
3. Address
for service: (the office of the
Defendant's solicitors, or as the case may be)
(signature)
(Capacity in which signed, eg. Defendant.)
Filed (dated, if not filed): (date) 19 .
IMPORTANT
NOTE:
A copy of this Notice must be served on
the prosecutor.
Service of Brief Directions:
I hereby consent that the written statements and copies of proposed
exhibits be served on the defendant's legal representative in this matter by:
1. Facsimile transmission
2. Emailing
3. Posting
4. Leaving it at the legal representatives address
COURT LISTING ADVICE
(IMPORTANT – Where the defendant is represented by a barrister or
solicitor a completed and signed copy of this document must be given to the
Court and the prosecutor on the return date)
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CASE:
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v
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REFERENCE NUMBER:
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FOR REPLY:
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DATE / /
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PNG:
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CONFIRMED
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WITHDRAWN
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STATEMENT IN
BRIEF
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WITNESS
REQUIRED FOR
CROSS-EXAMINATION
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IF WITNESS NOT REQUIRED FOR CROSS EXAMINATION IS THE TENDER OF
THE STATEMENT CONSENTED TO
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1.
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YES
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NO
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YES
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NO
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2.
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YES
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NO
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YES
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NO
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3.
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YES
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NO
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YES
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NO
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4.
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YES
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NO
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YES
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NO
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5.
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YES
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NO
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YES
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NO
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6.
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YES
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NO
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YES
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NO
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7.
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YES
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NO
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YES
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NO
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8.
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YES
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NO
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YES
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NO
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9.
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YES
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NO
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YES
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NO
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10.
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YES
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NO
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YES
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NO
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11.
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YES
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NO
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YES
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NO
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12.
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YES
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NO
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YES
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NO
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13.
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YES
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NO
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YES
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NO
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14.
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YES
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NO
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YES
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NO
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15.
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YES
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NO
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YES
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NO
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ESTIMATED DURATION OF HEARING
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HOURS
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NUMBER OF DEFENCE WITNESSES
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IS AN INTERPRETER REQUIRED?
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YES
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NO
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WHAT LANGUAGE?
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IS CCTV COURT REQUIRED?
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YES
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NO
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DEFENDANT’S SOLICITOR /
COUNSEL
SIGNATURE AND NAME
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CONTACT PHONE NUMBER
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